Drugs In Cars, For the Thousandth Time

After several decades of defending criminal cases, I’ve seen a few patterns emerge. Our brains are rigged to see patterns, even when they don’t exist, but let me share with you a pattern of behavior that keeps me in business. The vast majority of drug arrests arise out of basic traffic stops. Let’s face it, people like having drugs in their car. Shocking, I know. Take some time to catch your breath, and when you’re ready, read on. Many criminal defense attorneys–who happen to smoke weed–have their weed delivered to their home rather than having it in their vehicle, for fear of getting caught in this most pedestrian way. So, while it may come as some surprise that people who are smart enough to obtain a Juris Doctorate are dumb enough to regularly break the law, at least they are smart enough to avoid the number one way of getting caught.

Millions of folks employed by Crime Inc. would probably be doing something else for a living if citizens stopped committing crimes in their vehicles (drugs and DUI’s account for most of the crimes out there). There’s a simple solution to this, as there is for much of the world’s problems. Stop transporting drugs in cars. Stop eating so much. Stop the violence, hate, etc. That being said, if Coke couldn’t convince the world to sing in perfect harmony, I’m probably not going to be looking for other work any time soon. People are going to keep transporting drugs in their cars, and I’m going to keep helping them out of it.

Should you be one of the unfortunate souls (yes, I think we all have souls) that has been caught possessing a controlled substance in a vehicle, the good news is that a conviction is tough to obtain when several passengers are present in the vehicle. The real life example we’re going to discuss today is Session v. State, 2016 Fla. App. LEXIS 4241 (Fla. 5th DCA 2016). When law enforcement first spotted Mr. Session, he was just chilling in the driver seat of a friends car; keys in the ignition, driver door wide open. As the police approached the car, they noticed that Session was rolling a joint, while the passenger in the vehicle was, also, just chilling. On the center console between the two, the officers saw several baggies of cocaine, and one baggie of morphine. As is the case with most cars, the plainly visible baggies were “easily within reach of both occupants”. id. In such cases, how do you prove a case against the driver, Session, versus the passenger? Neither men confessed, and neither owned the vehicle.

The best way to prove a case like this is to do some actual police work, but don’t hold your breath for that to happen any time soon. When two people in a car are both within reach of some controlled substances, law enforcement will need to look for some fingerprints, maybe DNA–any sort of forensic evidence to show that one person had touched the baggies versus the other. In Sessions’ case, the prosecutors presented no such evidence. So, when “there is more than one possible possessor present and the contraband is within reach of each”, we call this a “constructive possession” case, meaning that the state must prove two elements: that Sessions knew the drugs were present, and second, that he had the ability to exercise dominion and control over the drugs. id. Obviously, Sessions knew the drugs were present, because they were in plain sight, so the State satisfied the knowledge element. But, did the state prove that he had dominion and control over the drugs?

The appellate court decided that the prosecution did not prove Sessions had dominion and control over the baggies right next to him in the car, reasoning that, “although courts use the phrase ‘the ability to exercise dominion or control,’ none of them mean it in the most simplistic sense. If ‘ability’ to exercise dominion and control was enough, then proving simply that the defendant could reach out and grab the contraband would suffice on the second element of constructive possession; however, that is not the law. Courts have held that a defendant’s ‘mere proximity’ to the contraband, without more, is insufficient proof of the defendant’s ability to exercise dominion or control over it”. id. As a practical matter, the State needed evidence which tied Sessions to the drugs, as opposed to the passenger, and no such evidence was presented. See Martoral v. State, 946 So. 2d 1240 (Fla. 4th DCA 2007).